September 4, 2005

Roberts for Chief?

Orin Kerr thinks so. I agree!

Since O'Connor's resignation was contingent on replacement, isn't it possible to switch the Roberts nomination to Chief Justice and have a nine-member Court sitting when the term begins? Then replace Justice O'Connor.

UPDATE: Actually, I think this would be a poor strategy for Bush if his goal is to produce a more conservative Court. In that case, he should follow through with the Roberts nomination ousting the swing voter O'Connor. That is nearly an accomplished feat at this point. If he replaces Rehnquist first, the debate about how a moderate should replace O'Connor will return to square one.


madcat said...

I completely agree. And I do think having a nine-member sitting Court (with Roberts as Chief Justice) should be preferable to trying to pack the Court at this politically vulnerable time at the risk of not having a nine member court come First Monday.

Yevgeny Vilensky said...
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Yevgeny Vilensky said...

In response to Ann's Update --

You pose a really good point. Especially since the Left's main argument against Roberts is that he is replacing O'Connor who is a moderate and so he should be closely scrutinized. It seems then that if there was a conservative replacing Rehnquist, they wouldn't mind as much since Rehnquist was conservative to begin with. So, since Roberts will sail through anyway, they should then use the opportunity to confirm a replacement for Rehnquist. One possibility is elevating Scalia. Liberal Senators are already on record as favoring him for elevation. Then, Bush could appoint a replacement for Scalia and since he is the most conservative member of the Court, there won't be much of a fight to replace him with someone like, say, McConnell.

Unfortunately, though, Scalia rubs people the wrong way with his strong dissents. So, I am not sure he would be very effective at Chief. As I commented on Orin's post at the VC, I think that McConnell would be a reasonably good choice to replace Rehnquist. It's a conservative for conservative trade. And, while the academics who signed the letter supporting McConnell's Circuit nomination made plenty of caveats about their support being contingent on the fact that on the lower court, he'd be bound by precedent, that letter could still rhetorically impale them since most Americans won't really care about this subtlety. It would be very difficult to Bork him.

Chris said...

Okay, here goes. Janice Rogers Brown. I know, it sounds nutty, but she's been confirmed, and what it does do, in the post-Katrina political trouble Bush finds himself in, is cleave the Base close to him once again.

Won't happen, of course, until JR is on the Court.

Moon God said...

Actually, my prediction is that Bush will elevate Thomas. He might've liked Scalia, other things being equal, but I think it'll come down to the issue of legacy. Thomas has High Court experience, Roberts does not. Vs. Scalia, Thomas has the benefit of age. Thomas can be counted on to be on the Court for at least another full generation.

I don't think Katrina will really feed that decision. Even if, and I'm not convinced of this anyway, Bush might've thought that nominating Condi Rice and Colin Powell to high positions would've improved his standing in the African American community, he quickly learned it didn't make a difference. He and his advisors have to know that elevating Thomas won't make a difference here either. I think it comes down to Bush's agreement with Thomas on the issues, his personal like of the guy, and yes, the legacy issue.

Now, as for who he nominated next, to fill that 9th seat, I have no idea. Edith Clement? Janice Rogers Brown? McConnell? I wouldn't be surprised to see Gonzales, but as others have pointed out, a replacement for Rehnquist is nearly unBorkable. What's the worse he could do, nominate a conservative to replace a conservative? Horrors!

Pat Patterson said...
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Gerry said...

Edith Clement.

I thought it would be her last time-- and I think it will be her this time.